Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 03 CR 11983. Honorable Thomas V. Gainer, Jr., Judge Presiding.
Sentence vacated; remanded for resentencing hearing.
In a criminal prosecution where the appellate process resulted in defendant's sentences being vacated and a new sentencing hearing ordered, but the trial court merely ordered a new presentence investigation report, allowed defense counsel to address the court, and then corrected the mittimus, the appellate court again vacated defendant's sentence and remanded the matter for a resentencing hearing in compliance with the requirements of the Unified Code of Corrections, including consideration of the PSI and the factors listed in the statute and an opportunity for defendant to speak on his own behalf.
FOR RESPONDENT-APPELLEE: William Toffenetti, Peter Maltese, Office of the Cook County State's Attorney, Chicago, IL.
FOR PETITIONER-APPELLANT: Alison S. Shah, Office of the State Appellate Defender, Chicago, IL.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.
[¶1] The legal system inadvertently stumbled after our supreme court and this court ordered that defendant Ephrain Mitchell's sentences be vacated and the trial court hold a new sentencing hearing. Instead, Mitchell was resentenced without a new sentencing hearing. What happened is regrettable but occurs from time to time due to the sheer volume of criminal cases, limited resources (both financial and personnel), paperwork, and the technical intricacies associated with of the administration of criminal justice.
[¶2] Mitchell appeals from the dismissal, on motion of the State, of his petition for relief under the Post-Conviction Hearing
Act (725 ILCS 5/122-1 et seq . (West 2010)). Mitchell asks that we again vacate his sentences and remand for a new sentencing hearing or that the mittimus be corrected to reflect the proper amount of presentence custody credit. Mitchell deserves the hearing he was promised. We vacate his sentences and remand for a new sentencing hearing.
[¶3] A jury convicted Ephrain Mitchell of aggravated vehicular hijacking, aggravated battery with a firearm, and armed robbery. The trial court sentenced him to concurrent terms of 30 years' imprisonment on all three convictions. We affirmed the judgment on direct appeal. In the course of doing so, we also denied the State's request to impose 15-year sentence enhancements relating to armed robbery and aggravated vehicular hijacking, holding that Mitchell's ...